BHRIGURASHRAM MISSIR Vs. SURENDRA NATH MITRA

JUDGEMENT

(1.) This is an appeal by the defendants 2 and 2(a) arising out of a suit for declaration of title, recovery of possession and partition of the plaintiffs 4/5th share "in the properties given in Schedule 1 of the plaint.

(2.) One Ram Chandra Mitra had five sons, of whom plaintiffs are the four sons and Satya Das Mitra, defendant No. 4, is the other son. They are governed by the Dayabhag School of Hindu Law. Father Ram Chandra advanced Rs. 2,997/-on a mortgage bond (Exhibit 1) to Jagdambika Pd. Narain Singh on the 8th of February, 1923, on the security of about 19 bighas out of the suit properties and another 10 bighas and two milkiat properties. He instituted a mortgage suit (No. 34 of 1928) and obtained a decree on the 22nd of May, 1929, which he executed in Execution Case No. 54 of 1930, and brought the mortgaged properties to sale, which he purchased on the 4th of August, 1930. That sale Was confirmed on the 13th of September, 1930, and possession was taken through Court on the 15th of June, 1931. Subsequent to that, the landlord, Bettiah Raj Estate, filed a rent certificate against the recorded tenant Jagdambika Pd. Narain Singh for default of payment of rent for the suit properties including the 19 bighas which Ram Chandra had purchased in execution of his mortgage decree. In that rent certificate proceeding, the land in suit was brought to sale and purchased in the name of one Janki Singh on the 20th of June, 1934, Plaintiffs alleged that this purchase was really by the plaintiffs and defendant No. 4 in Janki Singh's name and they came in possession since then. On the 14th of August, 1939, the plaintiffs and defendant No. 4 got a nominal sale deed executed by Janki Singh in favour of defendant No. 6, Pulin Chandra Sarkar; but in spite of that, the plaintiffs continued their actual possession. It was their further case that their brother, defendant No. 4, Satya Das, was working as a treasurer in the Motihari Treasury in the district of Champaran, and while working in that capacity, he defalcated a large sum of money, for which he was convicted and sentenced to imprisonment. For realisation of the misappropriated amount, a proceeding under the Public Demands Recovery Act was instituted against Satya Das, and the suit properties, along with some other items of properties, were attached. As there was a sale deed in the name of Pulin Chandra Sarkar, he filed a claim case in that certificate proceeding alleging that the properties belonged to him and couid not be attached as belonging to Satya Das. His objection was overruled and the properties were brought to sale and defendant No. 2 purchased the same in the name of defendant No. 5. Possession was taken of the same on the 16th of August, 1942, through Court.

(3.) Later on, defendant No. 2 leased Out those properties to defendant No. 3 who in collusion with the lessor cut away valuable fruit find other trees from the land. On that account the plaintiffs asked for a decree for Rs. 7,296/- by way of damages in the present suit along with past mesne profits of Rs. 4,920/- and future mesne profits.